Report: Recount Vote Left Wounds in Some Justices

Supreme Court Justice David H. Souter was convinced he could have altered the outcome of the 5 to 4 decision that tipped the presidential election to George W. Bush had he been given just "one more day" in which to make his case to a wavering Anthony M. Kennedy, Newsweek magazine reported yesterday.

Souter made the claim in a meeting with prep school students in January, a month after the court rejected an appeal by Vice President Al Gore to continue a vote recount in Florida, according to the magazine's account.

The account -- excerpted from a book, "The Accidental President," by Newsweek writer David A. Kaplan -- challenges statements by some justices in the aftermath of the decision that they had put the matter behind them and were once again enjoying cordial relations.

It describes Souter and the three colleagues who joined him in dissent -- Justices Stephen G. Breyer, Ruth Bader Ginsburg and John Paul Stevens -- as angered and baffled by the majority opinion.

Their emotions boiled to the surface in January when Breyer told a delegation of visiting Russian justices, as his colleagues looked on, that the court's decision was "the most outrageous, indefensible thing" it had ever done, according to the account.

Gore was described as so confident of winning the Supreme Court battle that he drafted an opinion piece for the New York Times in which he ruminated on the "wellspring of democracy" and asked how the justices could "claim for themselves" the right to decide the election, according to Newsweek.

Before he submitted the piece, Gore showed it to Walter Dellinger, a former solicitor general under President Bill Clinton, who liked it but cautioned the vice president, "You should be thinking about whether running this would provoke the court," the Newsweek article stated.

The court rendered its decision before the piece could be published.

A month after the decision, the article reported, Souter told visiting students from a Connecticut prep school, Choate-Rosemary Hall, that if he had had "one more day -- one more day" he would have won Kennedy over to his side, tipping the decision to Gore and sending the case back to Florida.

"It should be a political branch that issues political decisions," Souter was quoted as telling the students.

The article did not quote Kennedy or Souter directly. But Kennedy was described as defending his decision during the meeting with six Russian judges, who were visiting the court to learn more about American democracy. "Sometimes you have to be responsible and step up to the plate," the article quoted him as saying. "You have to take responsibility."

Breyer, during the same meeting, indicated that the wounds wrought by the majority decision were deep. "We all agree to disagree, but this is different," he was quoted as saying.